USA v. Juver Diaz-Martinez

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UNPUBLISHED OPINION FILED. [17-40495 Affirmed] Judge: PEH, Judge: EHJ, Judge: JES. Mandate issue date is 01/29/2018 for Appellant Juver Alexander Diaz-Martinez [17-40495]

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Case: 17-40495 Document: 00514296709 Page: 1 Date Filed: 01/05/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-40495 Summary Calendar United States Court of Appeals Fifth Circuit FILED January 5, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JUVER ALEXANDER DIAZ-MARTINEZ, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 1:16-CR-1170-1 Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges. PER CURIAM: * Juver Alexander Diaz-Martinez appeals the 24-month sentence imposed for his illegal reentry conviction. He contends that the assessment of criminal history points for a prior conviction that also serves as the basis for an increase in the offense level violates the Double Jeopardy Clause by unconstitutionally punishing him twice for the same offense. Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 17-40495 Document: 00514296709 Page: 2 Date Filed: 01/05/2018 No. 17-40495 We review de novo the district court’s interpretation and application of the Sentencing Guidelines. United States v. Dison, 573 F.3d 204, 207 (5th Cir. 2009). Double-counting does not violate the Double Jeopardy Clause so long as the Guidelines do not expressly forbid the double-counting. Id. at 208. The applicable guidelines provisions in this case expressly provide for doublecounting of a defendant’s prior conviction in enhancing his offense level and assessing his criminal history score. See U.S.S.G. § 2L1.2, cmt. (n.3). Accordingly, the district court did not violate the Double Jeopardy Clause. The judgment of the district court is AFFIRMED. 2

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